The stakeholders have raised the red flag, saying a proposed law – currently before Parliament – appears inadequate to address the managerial crisis at the IEBC.
Apart from the Judiciary, the Kenya Law Reform Commission, the IEBC secretariat, the IEBC selection panel and some poll experts say the Bill needs a further scrutiny and redrafting.
The National Dialogue Committee that was headed by Ruto and Raila’s men drafted the IEBC Amendment Bill, 2024, to, among others, aid the selection of new IEBC chiefs.
However, key concerns have emerged with the proposed law, among them failure to "speak strongly to the need to separate policy, and administrative roles in the IEBC".
“The Bill does not make any proposals on the clarity of the roles of the chairperson, commissioners, CEO and staff of the commission as recommended by the Supreme Court,” Chief Registrar of the Judiciary Winfridah Mokaya said in a memo to MPs.
IEBC operations have recently been hampered by rows pitting the secretariat and the commissioners.
This played out prominently in the 2017 general election when stark differences of opinion played out between then IEBC chairman Wafula Chebukati and then CEO Ezra Chiloba.
The difference was about whether the secretariat or the commissioners should handle critical procurements at the IEBC.
“We call upon Parliament to develop further legislative reform proposals in line with the observations and recommendations of the Supreme Court,” the Judiciary said.
The court said there was “a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy.”
In a separate memorandum to Parliament, the Kenya Law Reform Commission warned against putting the quorum of the IEBC commission at as high as five.
KLRC said this could cripple the electoral commission.
The Bill sets the quorum of IEBC commissioners at five and bars any members from taking up the role of chairperson.
It also deletes the provision in the current law that the vice chairperson can act in the absence of the chairperson, and also provides this person need not be a judge to qualify.
KLRC says IEBC operations would be paralysed in the absence of a chairperson and five members to transact business.
“The implication of deleting the words ‘or vice-chair or member’, when read together with the proposed deletion of Section 7a is that the chairperson cannot designate a member as a temporary chairperson,” Joash Dach, KLRC chief executive officer, told MPs.
“How would the commission conduct its business in circumstances where the chairperson is unable by any reason to attend proceedings of the commission?” he asked.
On the quorum of five, KLRC said, “If the membership of the commission drops to below five, no business can be transacted by the commission.”
For the law reforms agency, despite the court decision of 2017 in the Katiba Institute case about quorum informing the proposed deletion, there would be a problem.
“We have to note that Section 7 provides the commission shall be properly constituted notwithstanding a vacancy,” Dach added.
“Section 7B, which provides that in the absence of chairperson, the vice chairperson was to act as the chair, was declared unconstitutional. A vacancy may occur because of death, resignation or removal.”
The IEBC supported the Bill’s proposal to deny vice chairperson and members the power to act in the absence of the chairperson.
“The appointment of chairperson is conducted and published separately. A member, therefore, may not take up the seat in case of a vacancy,” CEO Hussein Marjan said.
In a memo to the Tharaka MP Gitonga Murugara and Bomet Senator Hillary Sigei-led committee, the commission also rejected the quorum of five.
The electoral agency says a quorum of members is retained as in the current law, which sets it based on members present.
Marjan said, “The quorum should be dependent on the number of members in post.”
For the IEBC, “where a vacancy has occurred and the membership is less than five, the quorum shall not be less than 50 per cent of the number of commissioners in post.”
The Independent Electoral and Boundaries Commission has also opposed the proposed change of the chief executive officer’s tenure to three years renewable once. The term is now five years renewable once.
“In the alternative, should there be a need to review the term, it is proposed that the same be reviewed to a single term of six years,” Marjan said.
The electoral commission is also uncomfortable with the proposed composition of the IEBC selection panel, saying it has too many politicians.
“The proposal doesn’t sufficiently include all key stakeholders as it gives most priority to political parties,” CEO Hussein Marjan said.
The IEBC Bill expanded the hiring panel from the current seven to nine members.
Two persons will be from the Parliamentary Service Commission – to represent the majority party or coalition of parties and the minority party or coalition of parties.
Three persons would be nominated by the Political Parties Liaison Committee, one from the Law Society of Kenya and the Institute of Certified Public Accountants of Kenya.
The Interreligious Council of Kenya has two slots while the Public Service Commission lost its slot in the changes.
The IEBC said increasing the political party slots to five would crowd out the other stakeholders.
“The selection panel needs to be inclusive of all key stakeholders who will give additional value to the process,” Marjan said.
He suggested the enlisting of special interest groups, the PSC and other professional entities.
In the same vein, the commission says at least one of the chiefs, besides the chairman, should be a lawyer.
“We reiterate that at least one member of the commission besides the chairperson needs to have legal training because of the legal and quasi-judicial nature of election matters that the commission handles,” IEBC said.
The Electoral Law and Governance Institute for Africa (ELGIA) also pointed out that the law doesn’t clearly state the role of Parliament in boundary review.
“The role of Parliament needs to be stated clearly, especially since some changes may require not just institutional but also statutory reforms,” Felix Owuor, ELGIA executive director, said.
He added the Bill is short of stating the timelines within which both Houses of Parliament – Senate and National Assembly – should consider the boundaries review process.
Eyes are on the recommendations of the Justice and Legal Affairs Committee after consideration at the committee stage.
